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Monday, June 18, 2012

A federal jury in Washington, DC today found star
baseball pitcher Roger Clemens not guilty of all charges in the federal
criminal prosecution of him for perjury and related crimes arising from
Congressional hearings on the use of performance-enhancing drugs in professional sports. Clemens was charged with two counts of
perjury, one count of obstruction of Congress, and three counts of making false
statements in depositions, all stemming from sworn testimony before a Congressional
committee in which the seven-time Cy Young Award winner denied having used PEDs
during his major league baseball career.
Federal prosecutors asserted that the testimony was false. After a trial that lasted for nearly nine weeks
and involved scores of prosecutors and supporting federal agents, thejury deliberated for just over ten hours before finding Clemens not guilty on all counts.

As reported here previously, in an earlier trial on
the same charges a year ago, the judge, Reggie B. Walton, declared a mistrial based
on findings of prosecutorial misconduct.
However, Walton refused to dismiss the case completely so as to prevent
Clemens from being re-prosecuted for the charges. Thereafter the Justice Department did choose to
prosecute Clemens again, that case culminating in today’s verdict.

The second trial, like the first, was based
substantially on the testimony of two key witnesses: Clemens’s former strength coach, Brian
McNamee, who testified that he had injected Clemens with PEDs, and Clemens’s
former Yankee teammate, Andy Pettitte, who testified that Clemens had admitted using PEDs to him. Both witnesses were
greatly undermined by Clemens’s lawyers, Rusty Hardin and Michael
Attanasio. Pettitte, who has not said he
ever saw Clemens use any PEDs, finally acknowledged in questioning by Attanasio
that there was a 50% possibility that he misunderstood even the alleged
admission by Clemens.

Even more dramatically, McNamee, the only prosecution witness who claimed to have directly seen Clemens use any
PEDs, was subjected to a withering fifteen-hour cross examination over three
days by Hardin in the course of which McNamee acknowledged making false
statements or at least exaggerations on various earlier occasions, and appeared
to be fabricating assertions even during his testimony in this case. Finally, the defense lawyers produced McNamee’s
estranged wife as a witness, who flatly contradicted critical parts of the
strength coach’s testimony.

Clemens faced the possibility of thirty years of imprisonment
if convicted on all counts. The duration
of the deliberations was very short after such a lengthy trial. Whatever the verdict on Clemens may be in
the (non-criminal) court of public opinion, the quick verdict clearly indicates
a complete failure—or defeat—of the Government’s case in the eyes of the jury.

That acquittal comes in the wake of the largely failed
federal prosecution of baseball star Barry Bonds for obstruction of justice
and three counts of perjury in connection with his testimony before a federal grand
jury regarding PED use. Bonds, who, like
Clemens, faced lengthy imprisonment if convicted on all counts, was convicted
of only one, the jury deadlocking and failing to reach a verdict on the remainder. Bonds was sentenced to house arrest and
probation.

Among other defenses,
the Clemens legal team placed substantial focus on Congress itself, arguing that
with its subject hearings Congress had no real intention of eliminating PED use
in professional sports, but instead were merely seeking publicity and political
gain for members, so that any misstatements that might have been made would not
have been material to any serious Congressional initiatives in any event.

Congressmen Henry Waxman and Tom Davis were
the top Democrat and Republican members, respectively, of the Committee that conducted
the hearings involving Clemens and then jointly referred Clemens to the Justice
Department for prosecution. After the
complete acquittal of Clemens today, both men reportedly insisted on the
validity of their committee’s referral of the matter to Justice. Davis reportedly expressed doubts about the
wisdom of the Justice Department in bringing the prosecution that Davis’s
committee had referred to it.

A trial and appellate lawyer in Atlanta, Georgia, representing individuals and businesses in a wide variety of legal matters - business and commercial, personal law and personal injury, criminal defense and other government enforcement - in all Georgia state and federal courts.